A local authority breached the Care Act when it failed to meet a woman’s eligible need to maintain a habitable home following a flawed reassessment, the Local Government and Social Care Ombudsman has found.
Hertfordshire council caused injustice to the woman, known as Mrs X, when it reduced her personal budget following a September 2018 reassessment that failed to properly determine her eligibility by not considering her ability to maintain a habitable home.
This is one of the ten outcomes listed in the Care and Support (Eligibility) Regulations 2015. The inability to achieve at least two of these, due to needs arising from an impairment or illness, resulting in a significant impact on wellbeing, makes a person eligible for care and support under the Care Act.
The ombudsman found Mrs X had continued to buy extra help to meet her needs using her savings, and said the case indicated that the council had a more general practice of not meeting needs to maintain a habitable home and of asking people to fund this need themselves.
Mrs X has various medical conditions, including chronic fatigue syndrome, is cared for in bed, and lives with her husband, Mr X, who is unable to care for her.
When the council assessed Mrs X’s needs in April 2015, it found she was unable to achieve any of the outcomes listed in the eligibility regulations so she received a £484.54-a-weel package of care, to pay for daily personal care a day and weekend night sits. She also received £592.58 a week from the Independent Living Fund (ILF), to fund night sits during the week and 40 hours’ support from personal assistants, which the council replaced when the ILF ended in June 2015.
This came to £1,077.12 a week, compared with an indicative personal budget of £767.17.
Personal budget reduced
In September 2018, the council reassessed Mrs X on the grounds that her package was “disproportionate to need”. It found that her daily two-hour morning care call was too long and it could only provide support to clean rooms used by Mrs X, not the rest of the house, as it was providing care for her, not her husband. The assessment resulted in a cut to her personal budget, with her morning call reduced to 45 minutes and Mr and Mrs X being expected to fund help with practical tasks around the home.
The ombudsman found the council’s reassessment did not properly define which of Mrs X’s needs were eligible for support, making it unclear for which of those needs the council had a duty to provide support. The assessment also failed to address all 10 outcomes in the care and support regulations, which was a fault.
The watchdog decided Mrs X likely had an unmet eligible need for help maintaining her home because it was unlikely she would be able to manage cleaning and washing, as she was cared for in bed and had very limited mobility.
More ombudsman cases
“It appears the council’s practice is not to meet such needs but tell people they should fund this themselves, the ombudmsan said.
“But the council has a duty to meet eligible needs and cannot fulfill that duty by telling someone to pay for support themselves, The statutory guidance makes it clear that “there is no hierarchy of needs,” the ombudsman said.
The council was also at fault for failing to produce a care and support plan that complied with the statutory requirements, which are to specify needs identified in the assessment, the extent to which they meet eligibility criteria, the needs that the authority will meet and how it will do so and to which of the person’s desired outcomes the provision of care and support could be relevant.
Equal importance of all eligible needs
Ombudsman Michael King said the council “appears to have decided some needs are more important than others”.
“This is contrary to the Care Act, which places equal importance on all eligible needs – it is designed to ensure councils do not pick and choose which they meet.”
He urged Hertfordshire council to reflect on his report and make the recommended changes.
“These are designed to both put things right for the woman, but also to improve its practices by bringing them in line with the Care Act.”
Case not representative of “systemic failure”
In a statement, Hertfordshire said it did not believe that the case represents a systematic failure, “but reflects the circumstances of the individual person, that we continue to work with, and support”.
“Whilst the council considers this an isolated incident, the outcome will also be taken as an opportunity to review how best we ensure compliance with statutory obligations, and adherence to good practice, whilst meeting the increasing demand on our services, during these challenging times.”
The ombudsman recommened that the council, within four weeks of the report:
- Writes to Mrs X apologising for the uncertainty caused by its flawed assessment and failure to fully meet her need for help maintaining a habitable home.
- Pays her £650 for the failure to fully meet her need for help maintaining a habitable home.
- Pays her £250 for the time and trouble it has put her to in pursuing her complaint.
- At a date to be agreed with Mrs X, completes a Care Act-compliant assessment of her needs, including a decision on her eligibility, and produces a care and support plan which complies with Care Act.
Then, within eight weeks, it should provide evidence that it has:
- Taken action to ensure all future assessments comply with the requirements of the Care Act.
- Taken action to ensure in future everyone with eligible care needs receives a care and support plan which complies with Care Act requirements.
- Taken action to ensure in future the council fulfills its duty to meet the need for help maintaining a habitable home.
- Produced a plan for identifying anyone else with an existing eligible need for help maintaining a habitable home that is not being met and correcting this.
The council said it was in the process of taking the necessary steps needed to comply with the recommendations within the requested timescales.
Bournemouth, Christchurch and Poole 
Hampshire County Council 
Lincolnshire County Council 
Norfolk County Council 
Northamptonshire Children’s Trust 
South Gloucestershire Council 
Wiltshire Council 
Wokingham Borough Council 
Children and young people with SEND are ‘valued and prioritised’ in Wiltshire, find inspectors 
How specialist refugee teams benefit young people and social workers 
Podcast: returning to social work after becoming a first-time parent 
Podcast: would you work for an inadequate-rated service? 
Family help: one local authority’s experience of the model 
‘We are all one big family’: how one council has built a culture of support 
Workforce Insights – showcasing a selection of the sector’s top recruiters 
Facebook
X
LinkedIn
Instagram
Anyone surprised by this?
No
Nope, fettering it’s discretion is still common practice due to lack of knowledge from directors.
Not at all. Usually a case “have you approached the universal services or the voluntary section?” when one asks for such support. Signpost then close, another safeguard and kind of that cycle until it’s an emergency situation, which could have been prevented in the first place.
Very interesting cherry picking of what needs to meet has been standard Local Authority practice for years as clearly budgets as they presently stand cannot meet all identified needs. The Care Act gives a legal poison chalice to Local Authorities that they must meet all identified needs in full regardless of the resources that are made available to Local Authorities. Meanwhile in real terms Local Authorities simply cannot meet all of their responsibilities with falling revenues. I would not be surprised to see some Local Authorities being forced into bankruptcy by rulings such as these. Its very neat really Local Authorities are then painted as inadequate by a Government that has cut real term support massively as part of its 10 year Austerity Agenda.
Get ready for Austerity on steroids part 2 it is going to be very unpleasant. Governments with two trillion debt levels will slash and burn, that’s what Tory Governments do.
Councils do have a way around this if the just took the time to understand the law better.
Excellent outcome. There are many councils where this commonly happens
Yet another parsimonious response. Sadly this will almost certainly not be an isolated case in Hertfordshire. No shame, no decency and brazen disregard for the law. What a mindset that justifies dividing the house of a couple into his and her only areas to save money than re-frames it as reflecting the “circumstances of the individual”.
Mr Horse, poverty of imagination of these genius local authority chief execs and finance officers and directors and the rest of them doesnt seem to extend to their exorbitant pay. I’ve yet to see one of them join a local campaign or rail against austerity with sincerity, after all there are damehoods and knighthoods and empire medals to strive for.
According to Hertfordshire council spokesperson the average yearly cost of an independent residential placement is £240.000. Not a murmur about profiteering but an absolute expectation for tax payer payouts. When ADASS of all things champions privatisation, don’t just criticise the government. The Tories at least are transparent in their contempt for public services, what’s in it for ADASS?
Not surprised in the slightest. “We don’t do shopping, we don’t do cleaning”. How many times do councils need to be told this? Maybe this should be discussed with ADASS directly and the fines start to get bigger.
It’s a pity that this finding didn’t happen 10 years ago, only wish it was a retrospective Judicial Review.